Does the Cohabitation Provision of the Alimony Reform Act Apply Retroactively?

At the end of July 2016, in Brumleave v. Ouellette, the Appeals Court decided the issue of whether a petitioner could seek a modification of alimony based solely on his ex Wife's cohabitation. While the Alimony Reform Act of 2011 allows for modification and termination of alimony should the recipient cohabitate for a period of 3 months or more, this provision does not apply retroactively. In other words, because the parties entered into their Separation Agreement prior to the Alimony Reform Act taking effect in 2012, the ex-husband cannot rely on it when seeking that his alimony order be modified or terminated. Instead, he has to show that a material change in circumstances occurred, that would warrant such a modification. For example, the Petitioner could show that due to his ex-Wife's cohabitation, her financial needs had decreased materially. Unfortunately for the Petitioner, the Wife was already cohabitating at the time that the alimony order was initially set, and her income subsequently decreased when child support terminated.

As such, the Appeals Court held that it was improper for the trial judge to reduce the Petitioner's alimony obligation from $1,000 to $550 per week.

The payment of alimony and whether it makes sense in a particular case is a complex issue worth speaking to an experienced attorney about. More and more information and guidance is being provided by the higher courts, which allows attorneys to better inform their clients. For this reason, it is worthwhile to speak with an attorney about your alimony questions, whether you are going through the divorce process or are seeking a modification of a prior judgment.



(c)2016 by Law Office of Leila J. Wons, P.C. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Increasing the Length of Marriage for Alimony Purposes when the Parties have Cohabitated or had an Economic Marital Partnership Prior to Marriage

On June 15, 2016, the Supreme Judicial Court issued a decision on Ellen Duff-Kareores v. Christopher Kareores, in which they addressed the issue of calculating the length of a marriage for purposes of alimony under the alimony reform act.

This case was very unique, in that it involved parties who had divorced in 2004 after approximately 9 years of marriage, began cohabitating again in 2007, remarried in December 2012 and commenced divorce proceedings just 6 months later.  Under the alimony reform act (M.G.L. c. 208 § 48), the Trial Court Judge has the authority to extend the length of the parties’ marriage “if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.” Since the terms “economic marital partnership” and “cohabitation” are not defined in the statute, the SJC weighed in on what factors the Judge should consider.

The Supreme Judicial Court looked at a related provision of the alimony reform act, which discusses the circumstances under which alimony may be reduced, terminated or suspended upon the cohabitation of the recipient spouse, when the spouse paying alimony shows that the recipient has maintained a common household with another person for a continuous period of at least 3 months. M.G.L. c. 208 § 49 (d).  This provision further provides that in order to determine whether or not a former spouse is maintaining a “common household”, the Court can consider the following factors: 

(i) oral or written statements or representations made to third parties regarding the relationship of the persons;

(ii) the economic interdependence of the couple or economic dependence of [one] person on the other;

(iii) the persons engaging in conduct and collaborative roles in furtherance of their life together;

(iv)  the benefit in the life of either or both of the persons from their relationship;

(v) the community reputation of the persons as a couple; or

(vi) other relevant and material factors.

                                                                                      G. L. c. 208, § 49 (d) (1)

Using the above definitions, as well as other considerations, the SJC concluded that only where the parties share a common household and are engaged in an economic marital partnership that a judge has discretion to increase the length of a marriage, or to suspend, reduce or terminate a general alimony award, and that the judge must consider the above factors in determining the definition of a “common household”, in order to ascertain whether the parties were participating in an economic marital partnership.

The Court further noted that even though the alimony reform act states that alimony cannot be reinstated after the recipient’s remarriage (except by the parties’ express written agreement), this doesn’t apply when the recipient has remarried or began cohabitating with the original, payor spouse.

Last, the Court addressed the question of whether or not the Judge could deviate in the calculation of the length of marriage, above and beyond consideration of the above factors (for example, could the Judge determine on his own that the length of the marriage for alimony purposes would be longer than the amount of time that the parties were actually married or cohabitating and engaged in an economic marital partnership?)  The SJC determined that no, the alimony reform act does not provide a Judge with discretion in calculating the length of a marriage other than as outlined above. The Judge can, however, deviate from the amount and duration of alimony payments, under M.G.L. c 208 § 53 (e).

SO WHAT DOES THIS MEAN FOR YOU?

First, even if you don’t remarry your ex-spouse, this holding would apply to any situation where the parties cohabitated and were engaged in an economic marital partnership prior to marriage, and alimony is at issue. It doesn’t mean that a Judge must extend the length of your marriage when there is evidence of cohabitation and an economic marital partnership; this is ultimately in the Judge’s discretion. However, the Judge must consider the definitions of cohabitation when making a determination of whether or not it actually occurred.

Second, this may be another incentive to consider a premarital (prenuptial) agreement. When negotiating the terms of a premarital agreement, the parties can discuss the factors that will be considered in setting the length of their marriage in the event of a divorce. While this language in and of itself won’t be controlling at the time of divorce (the court has to consider other factors when determining the validity of a premarital agreement), it can certainly assist the parties in planning their financial futures, and can show their intent.

            

             To discuss your alimony questions or concerns, contact Attorney Leila J. Wons for an initial consultation. 

(c)2016 by Law Office of Leila J. Wons, P.C. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

What is Alimony Reform All About?

On September 26, 2011, Governor Deval Patrick signed an act reforming alimony in the Commonwealth, the "Alimony Reform Act of 2011". This alimony reform has significant repercussions on currently existing alimony orders, as well as future alimony judgments, and will become effective March 1, 2012.

The following is a breakdown of the new alimony laws and what they mean.  However, this is not a complete outline of the Alimony Reform Act! If you have a currently existing alimony order or are interested in learning more about how alimony may or may not apply to your particular situation, please schedule an appointment with Attorney Wons.

ALIMONY AND PROPERTY
In determining an equitable distribution of property between parties in a divorce action, the court shall also consider the alimony order, if any, that is established.

TYPES OF ALIMONY
There are 4 types of alimony that can be ordered:

• General Term Alimony (what most people think of when we speak about alimony, i.e. periodic payments for a set amount of time);

• Rehabilitative Alimony (periodic alimony payments of not more than 5 years for a spouse who is expected to become economically self-sufficient by a set time, i.e. when they finish school or training);

• Reimbursement Alimony (periodic or lump-sum alimony payments in a marriage of 5 years or less meant to compensate a spouse for their contribution to the other spouse's financial resources, i.e. payments made to a spouse for taking care of the children and the home while the payor spouse earned his or her degree); and

• Transitional Alimony (periodic or lump-sum alimony payments lasting no more than 3 years in a marriage of 5 years or less to enable the recipient spouse to transition into an adjusted lifestyle, i.e. to enable a spouse to find suitable housing once the marital home is sold).

DURATION OF ALIMONY
Rather than leave the duration of alimony to the sole discretion of the courts, judges now have to follow general guidelines when issuing General Term Alimony:

• For marriages of 5 years or less, alimony cannot last for longer than 50%  of the number of months the parties were married (2.5 years max, or 30 months);

• For marriages of 10 years or less, alimony cannot last for longer than 60% of the number of months the parties were married (6 years max, or 72 months);

• For marriages of 15 years or less, alimony cannot last for longer than 70% of the number of months the parties were married (10.5 years max or 126 moths);

• For marriages of 20 years or less, alimony cannot last for longer than 80% of the number of months the parties were married (16 years max or 192 months);

For marriages of over 20 years, the court still has the discretion to determine how long alimony payments will last. However, in all instances alimony must terminate upon the paying spouse's attainment of the full retirement age (when he or she is eligible for the old-age retirement benefit under the US Old-Age, Disability, and Survivors Insurance Act.)

MODIFICATIONS OF ALIMONY JUDGMENTS
Notwithstanding the above guidelines, parties may seek modifications of their alimony orders at any time if a material change in circumstance occurs. In addition, the court may order that alimony continue after retirement age for "good cause shown". It will be interesting to see what the courts determine constitutes said "good cause", though I would think it applies to situations where one spouse receives substantially more assets that the recipient spouse from their respective pensions, social security or retirement accounts.

Although the new law becomes effective March 1, 2012, parties seeking modifications of existing alimony orders because the terms of their judgments exceed those set forth herein, cannot do so right away. Instead, they must follow these timelines:

• For marriages of 5 years or less, the parties may file on or after March 1, 2013;

• For marriages of 10 years or less, the parties may file on or after March 1, 2014;

• For marriages of 15 years or less, the parties may file on or after March 1, 2015;

• For marriages of 20 years or less, the parties may file on or after September 1, 2015.

• Regardless of these time limits, anyone reaching full retirement age on or before March 1, 2015 may file their Complaint for Modification on or after March 1, 2013.

ALIMONY AND CHILD SUPPORT
While a party can receive alimony at the same time as he or she is receiving child support, there are now limits for how long these two can last: The combined duration of alimony and child support cannot exceed the longer of 1) the length of an alimony order as set out above or 2) rehabilitative alimony that commences when child support terminates.

For example, if a couple with a 5 year-old child gets divorced, child support will likely be issued and continue for another 17 years (until the child graduates from college). If this couple had been married for 5 years or less, alimony can only last for a maximum of 2.5 years or however long a court would deem appropriate for the recipient spouse to become rehabilitated.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."